Apelação Criminal Nº 2005.71.13.002639-8/rs

Arresto de bens do acusado. Crime contra a ordem tributária. Compensação de tributos federais com créditos de natureza não tributária. Atipicidade decretada. Levantamento da constrição.

Rel. Des. Néfi Cordeiro

O MPF (fls. 02/18) requereu o seqüestro prévio, para fins de especialização de hipoteca legal, de bens móveis e imóveis de propriedade de Fernando Gasperin, denunciado na ação penal nº 2004.71.13.002587-0 pela prática, em tese, do delito previsto no artigo 2º, inciso I, da Lei nº 8.137/90. O pedido foi deferido (fls. 105/106). Os autos subiram para exame do recurso de apelação interposto. Nesta Corte, Fernando Gasperin vem, por meio da petição das fls. 347/348, requerer a concessão de liminar a fim de que seja determinado o levantamento do seqüestro, em razão do julgamento proferido pela 8ª Turma desta Corte, no recurso em sentido estrito nº 2004.71.13.002587-0. Do exame das cópias anexadas ao presente feito (fls. 349/353), verifica-se que a 8ª Turma, no julgamento do recurso em sentido estrito acima citado, reconheceu a atipicidade da conduta do requerente anulando a ação penal nº 2004.71.13.002585-7. Referida decisão, restou assim ementada: “RECURSO EM SENTIDO ESTRITO. CRIME CONTRA A ORDEM TRIBUTÁRIA. ARTS. 1º E 2º DA LEI Nº 8.137/90. DECISÃO QUE SUSPENDE O PROCESSO E A PRESCRIÇÃO. COMPENSAÇÃO DE TRIBUTOS FEDERAIS COM CRÉDITOS DE NATUREZA NÃO TRIBUTÁRIA. ATIPICIDADE PENAL. ANULAÇÃO DO PROCESSO. Não constitui o crime do art. 1º da Lei nº 8.137/90, nem o capitulado no art. 2º do mesmo diploma legal, mas, tão-somente infração tributária, a compensação indevida de tributos federais com créditos de natureza não tributária, ainda mais se reconhecido pelo Conselho de Contribuintes do Ministério da Fazenda, a inocorrência de fraude em tal proceder, não sendo hipótese de suspensão processual, mas de anulação, ab initio, da ação penal. A ação penal acima citada, aforada a partir da Representação Fiscal nº 11020.000663/2004-44, já se encontra arquivada junto ao juízo de 1ª grau, em atendimento ao julgamento proferido pela 8ª Turma. Ressalte-se que embora o pedido de seqüestro tenha feito referência expressa a existência de uma outra Representação Fiscal para Fins Penais, autuada sob o nº 11020.000714/2004-38, não ensejou ela a propositura de ação penal contra Fernando Gasperin, como faz certo as cópias das fls. 360/365. Portanto, não mais subsistindo nenhuma imputação criminal contra o requerente, ilegítima e despropositada afigura-se a manutenção do seqüestro de seu patrimônio com a finalidade de garantir a reparação do dano em razão de eventuais reprimendas que se lhe pudesse ser infligida no feito originário. ANTE O EXPOSTO, defiro a liminar para o fim de determinar o imediato levantamento do seqüestro sobre os bens do requerente. Intimem-se. Após, voltem conclusos. (DJU2, 07.11.06, p 430)

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